Cholamandalam MS General Insurance Co. Ltd. v. S. Thilakam and Others

MACA.No.1442/2019 1 _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _WEDNESDAY, THE 6[TH] DAY OF DECEMBER 2023 / 15TH AGRAHAYANA,_ _1945_ ## _MACA NO. 1442 OF 2019_ _AGAINST THE ORDER/JUDGMENT OPMV 53/2017 OF III ADDITIONAL DISTRICT COURT, PALAKKAD / II ADDITIONAL MACT, PALAKKAD_ ## _APPELLANT/2ND RESPONDENT:_ _CHOLAMANDALAM MS GENERAL INSURANCE COMPANY LIMITED POONTHOLE NOW REPRESENTED BY ITS DEPUTY MANAGER, ACEL ESTATE, IYYATTIL JUNCTION, CHITTOOR ROAD, KOCHI-11._ _BY ADVS. MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW_ ## _RESPONDENTS/PETITIONERS:_ _1 S.THILAKAM, W/O. LATE M.SURESH, 733, PAM HOUSE, NANDANAM, PARUVASSERY, KANNAMBRA VADAKKKENCHERRY, PALAKKAD, PIN-678 686._ _2 SUDHIN.S, AGED 18 YEARS, 733, PAM HOUSE, NADANAM, PARUVASSERY, KANNAMBRA, VADAKKENCHERRY, PALAKKAD, PIN-678 686._ _3 AVIN.S(MINOR), AGED 10 YEARS, 733, PAM HOUSE, NANDANAM, PARUVASSERY, KANNAMBRA, VADAKKANVCHERRY, PALAKKAD,PIN-678686_ _NOW REPRESENTED BY HIS MOTHER GUARDIAN 1ST RESPONDENT._ MACA.No.1442/2019 2 _4 KALYANI, W/O.MANIYAN, 733, PAM HOUSE, NANDANAM, PAVUVASSERY, KANNAMBRA, VADAKKANCHERRY, PALAKKAD, PIN-678 686._ _5 MANIYAN, S/O.AZHAKAN, 733, PAM HOUSE, NANDANAM, PARUVASSERY, KANNAMBRA, VADAKKENCHERRY, PALAKKAD, PIN-678 686._ _BY ADV.SRI.BABY MATHEW_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 06.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ MACA.No.1442/2019 3 ## **JUDGMENT** The appellant was the 2nd respondent in O.P.(MV).No.53 of 2017 on the files of the Motor Accidents Claims Tribunal, Palakkad. The said claim petition was submitted by respondents 1 to 5 herein seeking compensation for the death of one Suresh due to the injuries sustained in the motor accident that occurred on 04.07.2016. 2. According to the claimants, the accident occurred when the motorcycle ridden by the deceased was hit by a mini lorry bearing registration No.KL.8/BJ-160 owned and driven by the 1st respondent in the claim petition. The said vehicle was insured with the 2nd respondent in the claim petition, the appellant herein. According to the claimants, the deceased was a document writer with a monthly income of Rs.15,000/-. He was 46 years old at the time of the accident. The claimants were the wife, two children and the parents of the deceased. The claim petition was submitted in such circumstances. 3. The 1st respondent in the claim petition filed a written statement disputing the negligence on his part. The appellant/2[nd] respondent filed a written statement admitting the insurance coverage of the mini lorry. However, they denied the allegation MACA.No.1442/2019 4 that the accident occurred due to the negligence of the deceased. They also disputed the quantum of compensation. 4. The evidence in this case consists of Exts.A1 to A12 from the side of the claimants and no evidence was adduced by the appellants herein. After the trial, the Tribunal came to the conclusion that the accident occurred due to negligence on the part of the driver of the mini lorry and being the insurer of the said vehicle, the appellant was held liable to pay the compensation. The Tribunal awarded Rs.24,95,000/- as total compensation. The said amount was directed to be deposited by the appellant with interest at the rate of 7% per annum from the date of petition till realization with proportionate costs. This appeal is submitted by the appellant, the insurance company, challenging the quantum of compensation. 5. Heard Sri.Mathews Jacob, learned Senior Counsel for the appellant and Sri.Baby Mathew, learned counsel for the respondents. 6. The main contest is in relation to the quantum of compensation, particularly under the loss of dependency. It was pointed out that the Tribunal took the monthly income of the deceased as Rs.15,000/-. No evidence was adduced as to the MACA.No.1442/2019 5 nature of avocation and the income derived therefrom. After considering the materials placed on record, I find some force in the said contention. Even though the deceased claimed to be a document writer, absolutely no document, including the licence which enabled him to carry out the said avocation, was produced. None of the parties have also mounted the box and asserted the same as well. Therefore, there is no evidence to show that the deceased was a document writer and was deriving a monthly income of Rs.15,000/- from the said avocation. In the absence of any such documents to establish the monthly income, the same has to be fixed by adopting the method of computation evolved from the principles laid down by the Honourable Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance co. Ltd .[2011 (13) SCC 236]** and **Syed Sadiq v. Divisional Manager, United India Insurance Co.[2014 (2) SCC 735].** As per the said method, the basic monthly income has to be fixed as Rs.4,500/- in respect of an accident that occurred in the year 2004 and to determine the monthly income pertaining to the subsequent years, Rs.500/each per year can be added. While computing the said amount with the above method, the monthly income in this case can be MACA.No.1442/2019 6 fixed as Rs.10,500/- even though no evidence was adduced, as the accident occurred in the year 2016. Since the deceased was aged 46 years, the proper multiplier was 13 and towards personal expenses, ¼ of the income has to be deducted, as he left behind five dependents. Thus, while re-assessing the compensation with the monthly income of Rs.10,500/- the amount of compensation under the head of loss of dependency would come to Rs.15,35,625/-[(10500+25%)x12x13x3/4]. The Tribunal has already awarded an amount of Rs.21,93,750/- and there is an excess compensation of **Rs.6,58,125/-** . 7. When moving on to the other heads, it can be seen that the Tribunal awarded an amount of Rs.2,00,000/- towards loss of love and affection to the minor children and the parents. In addition to that, the Tribunal has also awarded a further sum of Rs.40,000/- as loss of consortium to the 1[st] respondent wife of the deceased. However, it is to be noted that, as per the observations made by the Honourable Supreme Court in **Magma** **General Insurance Co.Ltd. v. Nanu Ram & Others 2018 (3) KLT Online 3095 (SC)** and **United India Insurance Co. Ltd. v. Satinder Kaur [2020 (3) KHC 760],** all the appellants being the wife, children and parents are entitled for the compensation MACA.No.1442/2019 7 for loss of consortium at the rate of Rs.40,000/- each and thus the total amount would come to Rs.2,00,000/-. It is also held in **Satinder Kaur (surpa)** that when compensation is awarded for loss of consortium, no further amount needs to be granted towards loss of love and affection as the amount awarded under the head loss of consortium would take in the compensation for loss of love and affection as well. In such circumstances, the amount awarded by the Tribunal under the head loss of consortium has to be adjusted against amounts of love and affection. Thus, the same would result in a deduction of **Rs.40,000/-** . In addition to that, the learned counsel further contended that the amount awarded by the Tribunal under the head pain and suffering is Rs.25,000/-, which is on the higher side since it was a case of death, that much compensation under the said head ought not have been granted. However, I am of the view that the said contention cannot be accepted in its entirety. This is particularly because the deceased passed away on the next day, and therefore, some amount has to be awarded as compensation. Therefore, the compensation is re-assessed as Rs.15,000/-; thus, the same would result in a deduction of **Rs.10,000/-** . Thus, in the light of the aforesaid findings and MACA.No.1442/2019 8 observations, Rs.7,08,125/- [658125+40000+10000] is the excess compensation awarded by the Tribunal. In the light of the observations and findings this appeal is allowed. The award dated 30.11.2018 passed by the Additional Motor Accidents Claims Tribunal, Palakkad in O.P.(MV).No.53 of 2017 is hereby modified by re-assessing the award of compensation as Rs.17,86,875/- [Rupees seventeen lakhs eighty six thousand eight hundred and seventy five only) ( 2495000 – 1786875) and the said amount shall be deposited by the appellant with interest at the rate of 8% per annum from the date of petition till realization and with proportionate costs. The said amount shall be deposited by the Insurance Company within a period of three months from the date of receipt of a copy of this judgment after adjusting any amount already deposited by the Court. Sd/- ## **ZIYAD RAHMAN A.A.** **JUDGE** DG/7.12.23